Heard: December 7, 2016.
found and returned in the Superior Court Department on
September 23, 2010.
forfeiture proceeding was had before Sandra L. Hamlin, J.
M. Toomey for Peter J.
III. James E. McCall for Lee Peck Unitt.
Melissa Weisgold Johnsen, Assistant District Attorney, for
Present: Cypher, Maldonado, & Blake, JJ.
married defendants, Peter J. Unitt, III (Peter), and Lee Peck
Unitt (Lee), jointly operated a law office in Woburn prior to
their arraignment on numerous crimes related to the theft and
embezzlement of their clients' funds. Their adult
children, Jade Unitt (Jade) and Peter Unitt, IV (Peter, IV),
posted bail on their behalf. Neither defendant defaulted, and
each subsequently was convicted of a subset of the charged
crimes. This appeal presents the question whether, where no
default occurred, a judge of the Superior Court had the
authority to order that the bail posted on the
defendants' behalf be forfeited and applied toward the
restitution they owed. Because we conclude that under the
circumstances presented by this case, the judge did not have
such authority, we reverse the order of forfeiture.
October 18, 2010, both Peter and Lee were arraigned on
multiple indictments in the Superior Court, at which time
bail was set at $50, 000 cash for each defendant. On December
9, 2010, Jade, the defendants' adult daughter, posted
bail on behalf of Lee and was named as surety on the
recognizance. On February 16, 2011, Peter, IV, the
defendants' adult son, posted bail on behalf of Peter and
was named as surety on the recognizance. Both recognizance
forms, which are identical, warn the surety of the risk of
forfeiting the money posted for bail if the defendant
defaults, but list no other potential risks of forfeiture.
their arraignments in 2010, and their convictions in 2013,
each of the defendants appeared for court as required under
the recognizances, thereby satisfying the conditions of their
bail. In April of 2013, a jury convicted Lee of four counts
of larceny and one count of embezzlement. Thereafter, the
judge adjudicated her a common and notorious thief. On May 6,
2013, the judge sentenced her to consecutive terms of two
years to two years and one day on the larceny convictions,
ten years of probation to run from and after the committed
sentences on the embezzlement conviction, and, for being a
common and notorious thief, a twenty-year term of probation
to run concurrent with the committed sentences. In July of
2013, Peter pleaded guilty to one count of embezzlement by a
fiduciary and was sentenced to two years in the house of
correction, 120 days to serve, with the balance suspended for
four years. The judge also ordered the defendants to pay
restitution, jointly and severally, to three
three dates in June and November, 2013, and January, 2014,
the judge conducted hearings to determine whether the bail
posted on behalf of Lee and Peter should be assigned to the
probation department to be applied to the restitution order.
Although no witnesses testified on those dates,
several documentary exhibits were admitted in evidence. Jade
submitted an affidavit stating that the bail money was
comprised of two loans, one from her mother's sister and
one from her father's aunt. She also averred that
"[n]either of the funds used to bail my parents out
belong to my parents, myself, or my brother." The other
documents included the recognizance forms, a letter from a
victim's civil attorney as to the restitution amount
still owed, a notarized letter from Peter's aunt (with
attached bank statements and record of funds transferred)
stating that the funds sent for Peter's bail were a loan
to Jade, and Jade's bank statement indicating a $50, 000
deposit in Jade's account from a bank in
January 30, 2014, the judge issued a memorandum of decision
finding that "the credible evidence is that the $50, 000
posted each by [Lee and Peter] were in effect loans which
became the property of [Lee and Peter] with Jade Unitt
serving as the conduit since her parents were in jail and
unable to physically post the bail." In reaching her
finding as to Lee, the judge acknowledged Jade's
affidavit and the bank record showing a deposit from
Singapore, but relied upon her memory of Lee's trial
testimony and the lack of affidavits from either Lee
or her sister, in concluding that the loan was a sham. In so
finding, the judge acknowledged that she did not have a
transcript of the trial before her. As for Peter's ...